MIGRATION - Review of decision of the Migration Review Tribunal

PRACTICE & PROCEDURE - Discontinuance - costs - circumstances justifying costs order - where party follows legal advice that proceedings are unlikely to be successful - where applicant discontinues more than fourteen days prior to the date of final hearing - amount of costs sought reduced - party allowed time to pay

Federal Magistrates Court Rules 2001 r.13.01

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(1)

The Application is discontinued and is removed from the list of cases awaiting finalization.

(2)

I vacate the hearing date of 16 November 2005 at 10:15am.

(3)

The Applicant is to pay the Respondent's costs fixed in the sum of $2,750.00.

(4)

I allow four (4) months to pay.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

The application before the Court is an application by the Respondent for an order for costs. The substantive proceedings involve an application for review of a decision made by the Migration Review Tribunal on 6 March 2002. That decision affirmed the decision of a delegate of the Respondent Minister which found that the Applicant was not entitled to a grant of a partner (Temporary) (Class UK) visa.

The application came before a Registrar of this Court on 13 January 2005. The Registrar listed the application for final hearing at 10:15am on 16 November this year and made certain directions by consent in respect of the carriage of the matter.

The situation now before the Court is the Applicant has taken the decision to discontinue the proceedings. He explained to the Court today that it took a while for him to obtain a copy of the Court Book of relevant documents, colloquially known as the "Green Book", and in fact he had to make specific arrangements to see the Respondents lawyers, and in fact pay the sum of $48 to obtain a copy, arrangements had been made to post a copy to him but for reasons unexplained he had not received at the time. The Applicant had originally obtained legal advice about the advisability of commencing this proceeding. Armed with the "Green Book" he sought other legal advice and the advice that he received was that his application was unlikely to be successful. The Applicant said that he took the lawyer's advice and made the decision to discontinue the proceedings. He filed a notice of discontinuance within a few days after having obtained that legal advice.

The Respondents lawyers now seek an order for costs in the sum of $4,000, pointing out that they had taken substantial steps to prepare the application for hearing.

I have had occasion to read an affidavit of Catherine Jane Gray, Solicitor, in which she sets out steps taken in the carriage of this matter. I have no reason to doubt any of the matters set out in Ms Gray's affidavit.

The Applicant says that had he obtained a copy of the "Green Book" earlier he would have withdrawn the proceedings earlier, because obviously he would have been able to obtain this other legal advice earlier than he did. He says that he has not been permitted to work for the last two years, that he is totally dependent on his spouse, he has further debt to the Commonwealth of some $3,000, he is making arrangements to leave Australia by 22 November and he is doing what he can to make arrangements to meet this other debt to the Commonwealth.

The Federal Magistrates Court Rules provide in Rule 13.01 that a party may discontinue an application by filing a Notice of Discontinuance. The Applicant has done that and he has complied with sub-rule 2 in that he has filed the notice of discontinuance more than 14 days before the date fixed for the final hearing of the application. His application was filed on 24 August, whilst the date fixed for the final hearing is 16 November.

Rule 13.02 says that if a party discontinues an application or part of an application, another party in the proceedings may apply for costs, which is what the Respondent has done. The application for costs must be made within 28 days after service of the Notice of Discontinuance. That again is the case as the Notice of Discontinuance was only filed on 24 August, so the 28-day period has clearly been met by the Respondent.

Mr Kettle, for the Respondent points out that impecuniosity on the part of the party is not of itself a ground for the Court not to exercise its discretion in awarding costs, where it could otherwise be appropriate to do so. It is of course the situation that a party's financial circumstances may be taken into account when assessing time to pay.

I am mindful of the fact that the Applicant has taken steps to obtain legal advice and wisely, has followed that legal advice on being informed by a lawyer that his chances of success were remote, he has taken the prudent course of discontinuing proceedings at a relatively early stage. There would certainly be time for the Respondent to use the hearing date for other purposes, and counsel having been briefed could quite easily obtain another brief, I would consider, in the circumstances.

The Applicant's reasons for discontinuing are to my mind perfectly proper. This is not a matter where I believe that it would be inappropriate to make an order for costs, although I do consider that the amount sought is more than, in my discretion, I would be prepared to allow. To my mind, the actions of the party in making a timely discontinuance after obtaining legal advice are something that should be given approval by the Court, rather than people either continuing to run hopeless litigation and taking up time, or just failing to attend Court at all. The applicant has not done either, but has acted correctly and his correct actions should be considered accordingly.

In my view the sum of $4,000 is as I said more than I am prepared to award. I am of the view that an amount of $2,750 would be sufficient and I am also of the view that the Applicant should be allowed time to pay. I am mindful of his financial circumstances, I am mindful of the debt of $3,000 odd to the Commonwealth and that the Applicant is already making arrangements for that to be paid in the near future and in my view that debt to the Commonwealth should continue to have priority over the payment of a costs order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM